Is denying same sex marriage unconstitutional?

An article in The Conversation on 30 August 2016,  “Marriage ‘inequality’ is a threat to religious freedom – and it is probably unconstitutional” by academic Dr Luke Beck, Lecturer in Constitutional Law at Western Sydney University, suggests that, far from proposals to redefine marriage to include same sex couples being a threat to religious freedom, the current law (which does not recognize such relationships) is itself in breach of free exercise of religion principles.

Dr Beck, it has to be said, is one of Australia’s foremost legal experts on s 116 of the Constitution (I regularly cite his many articles on the topic to my students in the “Law and Religion” course I teach.) So it is with some hesitation that I have to say I disagree with his view on this issue. But disagree I do.

As I understand his argument, it proceeds in this way:

  • Section 116 of the Constitution prevents the Federal Parliament from enacting a law that “interfere[s] improperly with religious freedom.”
  • Under s 47 of the Marriage Act 1961 as it now stands, a minister of religion may decline to solemnize any marriage, for any reason whatsoever. [Controversially, Dr Beck suggests that this would even allow a religious celebrant to decline to solemnize a marriage between a couple of different races, if he or she so chose. With respect, as we lawyers say, I am not quite so sure about this. The opening words of s 47 are “Nothing in this Part…(a) imposes an obligation…”. That is, no rule otherwise laid down by Part IV of the Marriage Act 1961 imposes such an obligation. But there is surely an argument that, for example, another valid piece of Commonwealth law, such as the Racial Discrimination Act 1975 s 13, forbidding a refusal to supply “services” to a person on race-based grounds, would make such an action unlawful?]
  • This provision, s 47, then, will prevent ministers of religion being required to solemnise same sex marriages, should such be introduced. “Marriage equality advocates want to keep this section. If the Marriage Act is changed to allow same-sex marriages, ministers of religion will not be required to solemnise those marriages.” [For avoidance of doubt, as noted above, s 47 should probably be expanded to refer to “other laws” not having such an effect, as well as negating the operation of Part IV.]
  • But there are some ministers of religion who would like to solemnise same sex marriages at the moment.
  • However, the current Act prevents this happening. Dr Beck refers by way of a link to s 101 of the Act (which refers to persons solemnising marriages who are unauthorised to do so), but I would like to suggest his case would be stronger if he referred to s 100:

“A person shall not solemnise a marriage, or purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.”

  • There is an interesting technical debate about whether a purported “marriage” under the current law between two parties of the same sex would be “void” or not (or a “nullity”), but I think one could pretty clearly say there was a “legal impediment” to the purported marriage. Section 5 of the Act currently contains a very clear definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
  • Dr Beck then adds that, even if a couple wanted a solely “religious” marriage ceremony, which was not to be regarded as a legally valid one, the law would prevent this happening. He says: “a minister of religion in Australia can be sent to prison simply for holding a religious marriage ceremony for a same-sex couple.” Indeed, he points out that the same penalty is applicable for a minister who purports to conduct a religious ceremony for an opposite sex couple, without them having been through a civil ceremony.
  • On this issue, I think he is correct. The law of Australia has been established as it is, to discourage persons entering so-called “marriages” which are not actually recognized as such by the legal system. One obvious example is where a religious group might consider it within their system to marry a 14-year-old girl, for example. If the law allowed an “apparent” marriage of this sort to take place, it would be confusing for the parties and others, and likely to lead people to think the marriage was valid under Australian law, when it is not. For this reason all purely religious ceremonies that purport to “marry” are forbidden, except where the parties concerned have gone through a prior valid civil ceremony.
  • Indeed, the present Chief Justice of the High Court, French CJ, when he was a trial judge in the Federal Court, commented on this matter in Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990) when he noted that the religious freedom of “non-recognised” religious groups was preserved by the provisions of s 113 allowing a minister of such a group to conduct a religious ceremony:

    “the provisions of s 113(5) preserve in a way that is consistent with the free exercise of religious observance the right of persons married in the eyes of the law to undergo a religious form of marriage even where the religion concerned is not a recognised denomination and its minister not a registered minister” (at [14]).

However, where my disagreement with Dr Beck arises is in the conclusion he draws: that the fact that a minister of religion may not currently solemnise a same sex marriage, means that the provisions of the Marriage Act 1961 which achieve this result may be constitutionally invalid.

My main reason is that (as Dr Beck would no doubt agree) a person’s religious commitment is not an automatic “trump card” when other principles arise. Not every law that is contrary to a person’s private religious commitments is an “undue” restriction on religious freedom. A law that prevented a revived Aztec priesthood from conducting ritual human sacrifices at noon would be perfectly valid. The law currently forbids marriage under religious law of 14 year olds. It does so for a valid public policy reason concerning child protection. The law currently forbids a celebrant from purporting to solemnise a same sex “marriage”. Agree with that law or not, it does so for public policy reasons related to the support for the traditional view of marriage as between a man and a woman. That is a public policy stance which was articulated with clarity in Federal Parliament by the bi-partisan support for an amendment in 2004 inserting a clarifying definition of marriage into the Act to make it clear that same sex unions celebrated outside Australia would not be recognized as “marriages” within Australia, despite our otherwise generous recognition rules for such marriages. (This 2004 amendment, of course, did not effect a fundamental change in the Australia law, as is sometimes suggested. The definition of marriage as between a “man and a woman” was already contained in another part of the Marriage Act 1961 itself when first enacted, in s 46; and it was later enacted as part of the Family Law Act 1975, s 43.)

To again quote from the decision of French J (as his Honour then was) in Nelson v Fish, at [13]:

“The freedom guaranteed by s.116 is not absolute. It is freedom in a society organised under the Constitution – Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 131 (Latham C.J.), 155 (Starke J), 159 (Williams J.). It is “subject to limitations which it is the function and duty of the courts to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order” (p 155 per Starke J. – see also 132 per Latham C.J.).”

The forthcoming plebiscite, if it happens, may reveal whether or not the consensus of the Australian community on those matters has changed in recent years. But it does not seem plausible that a definition of the legal relationship of marriage that has been in force for most of recorded human history, in terms of the differential sexes of the parties, would overnight become an illegitimate policy end, which cannot be protected by Parliament.

Dr Beck comments that: “There is no justification for criminalising a harmless religious ceremony, which everyone knows has no legal effect, but which may have religious significance for the participants.” But the very same logic would justify allowing a polygamous marriage ceremony to take place, or an under-age ceremony, or one where the parties are not both fully consenting, under religious views. Australian law has long taken the view that, in the interests of maintaining clarity about who is married to whom, religious marriage ceremonies may not be conducted where there has been no prior civil ceremony. Community confusion will be bound to be created in these cases, even if (as would by no means always be the case) all the parties who were present were completely clear about the non-binding nature of the ceremony. (I have commented on these issues in a previous paper on the question of whether churches who disagree with the introduction of same sex marriage ought to withdraw from the marriage system if it is introduced.)

There may also be some doubts about the fairly wide view of the operation of s 116 which Dr Beck impliedly supports. On this issue in fact I tend to think he is correct, that the provision ought to allow a challenge to Commonwealth legislation when it “interfere[s] improperly” (to use Dr Beck’s phrase) with religious freedom; or when it amounts to an “undue infringement” of the right to free exercise of religion, as it was put by Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 128. There are, however, some authorities which suggest a much narrower scope to the s 116 protection of religious freedom: that it would only prevent a law the main aim or purpose of which was to impair religious freedom: see eg some of the comments in Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1, esp per Brennan J at 40; more recently Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) at [145]-[150]. I think, however, as Dr Beck seems to suggest, that there is a sound case to be made that the prohibition on interference with free exercise of religion operates more broadly. For example, I would certainly want to maintain that a law recognizing same sex marriage, which required all ministers of religion to celebrate such marriages, would be unlawful under s 116. And my view is s 116 may in fact also operate to protect other religious participants in the “wedding industries” from being required under other Commonwealth laws to provide their artistic services in the celebration of same sex unions.

However, because of the lack of clarity concerning how s 116 operates, in my view Parliament ought to explicitly provide such protections for religious freedom if it enacts laws allowing same sex marriage. Protection for religious free speech will also be needed if those who wish to maintain a respectful disagreement with the majority sexual orthodoxy, on religious grounds, are to be able to continue to articulate their views (see my previous comments on the case brought against Archbishop Porteous in Tasmania for simply teaching the Roman Catholic view of marriage in a booklet distributed to Roman Catholic schools.)

Despite Dr Beck’s optimism that the introduction of same sex marriage will not “presage an attack on religious freedom and people of faith in the Australian community”, unless careful consideration is given to these issues, this is likely, in fact, to be the outcome. Of course the freedom of religious groups to allow their ministers to conduct same sex weddings ought to be protected, if the institution of marriage is to change in the way proposed. But it is not those religious groups who find themselves under regular attack from media and politicians alike as “bigots” and “homophobic”. To quote Sir John Latham again, from the landmark Jehovah’s Witness case:

“such a provision as 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities (at 124).”

Litigation involving Churches in NSW

I was privileged to host a guest lecture in the “Law and Religion” course I teach, on Friday August 26, from Professor Keith Mason, former President of the NSW Court of Appeal and renowned legal scholar and jurist, on the topic of “Litigation involving churches in NSW”. Professor Mason is one of Australia’s leading experts on the law involving churches, having been involved as both counsel and on the bench in a number of important cases. His lecture was a fascinating tour of church litigation from the earliest days of the Colony up till the case involving the Bathurst Diocese just last year (for my earlier comments on that case see this previous post.)

Professor Mason has indicated that he is happy for me to share the audio of the talk, which can be listened to here:

For those who interested in reading the cases he refers to, the following provides the full citations (and links where available):

Cases mentioned in Professor Keith Mason’s lecture

  1. “Hotheads”
    1. R v Hall (No 1) [1829] NSWSupC 13 (12 March 1829) ; Hall v Scott [1830] NSWSupC 29; (1830) NSW Sel Cas (Dowling) 437 (6 April 1830)
    2. Ex parte Rev George King [1861] NSWLeggeSC 1; (1861) 2 Legge 1307 (9 February 1861)
  2. Attempts to control conscience by legal processes
    1. Wylde v Attorney-General (NSW) [1948] HCA 39; (1948) 78 CLR 224 (6 December 1948) (“the Red Book case”)
    2. Scandrett v Dowling (1992) 27 NSWLR 483 (not available freely online)
  3. Churches as defendants
    1. Trustees of the Roman Catholic Church v Ellis & anor [2007] NSWCA 117 (24 May 2007)
    2. Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856 (10 Dec 2015).

Is Same Sex Marriage a “Human Right”?

The question posed by the title of this post is simply this: is it a denial of a fundamental human right, for a legal system not to extend the category of marriage to include marriage between parties of the same sex?

The question was posed in a stark way by recent reported comments of the President of the Australian Human Rights Commission, Prof Gillian Triggs. Prof Triggs, for whom I have great respect as a scholar and academic, was delivering the annual Sir Anthony Mason Lecture at Melbourne Law School on 4 August, 2016. She strongly criticised a lack of commitment to human rights in recent decisions of the High Court of Australia, and the Commonwealth Government. In a short paragraph near the end of her address, she also said the following:

A recent example of the failure of Parliament to protect fundamental rights is the decision to hold a plebiscite on marriage equality.  Why do we hold an expensive, potentially divisive compulsory but non–binding national vote on the right to equality before the law.. a long recognized common law principle? The US Supreme court decision last year on marriage equality in Obergefel is yet another reminder of the limited role of the Australian High Court that has no power to interpret and apply a Bill of Rights.

The implication of this statement is that “marriage equality” (by which is meant “recognition of same sex marriage”) is simply an “equality” right which should be uncontroversial. Indeed, there is a suggestion that recognition of same sex marriage is really a right that flows obviously from Australia’s international human rights obligations, such as our accession to the International Covenant on Civil and Political Rights (ICCPR). Prof Triggs has been previously reported as telling a Parliamentary inquiry that there is a “right to marriage equality”.

In a later defence of this position in an opinion piece, “Genuine marriage equality is more than overdue in Australia” (Sydney Morning Herald, 28 Jan, 2016) Prof Triggs said:

Under article 26 of the  International Covenant on Civil and Political Rights  all people “are equal before the law and entitled without any discrimination to the equal protection of the law”. The Australian Human Rights Commission considers that this principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.

Yet the same piece frankly points out that international human rights bodies do not all agree with this assessment:

It remains true that international human rights law does not mandate recognition of marriage between same sex partners. Rather, the principle of equality under the ICCPR is considered by the UN Human Rights Committee to neither prevent recognition of same sex marriage nor to impose a positive obligation on states to do so.

In this post I want to briefly note the UN Human Rights Committee decision referred to here, and some decisions of another important tribunal, the European Court of Human Rights, which make it clear that at the moment it is not true to say that same sex marriage (whether under the guide of “marriage equality” or more accurate terminology) is a recognised “human right”. I will comment briefly on the terminology of “equality” before noting the relevant decisions.

Equality and Same Sex Marriage

As catchy and heart-warming as the phrase “marriage equality” is, it has to be said that it is fundamentally misleading in its description of the change of marriage laws needed to extend the institution of marriage to same sex couples.

I have commented on this matter previously: “Opposing same-sex marriage is not discrimination” (2011). But let me sum up briefly here. While a call for “equality” is right where people are being denied access to goods or rights on the basis of irrelevant characteristics, it is simply misleading when the matters to which access is demanded are defined in ways which require persons to be differentiated from each other. To use an example given in my previous paper, if I claim to be entitled to the status of “employee of Microsoft”, and hence the right to receive a salary from the company, then I need to fulfil the prerequisites of such a status. Unless I have a contract of employment with the company, and carry out the work I have been contracted to do, I have no right to complain of a lack of “employment equality” when I don’t receive a salary from Bill Gates.

So the question that must always be addressed when a claim for “equality” is made, is – “equality” in what respects? for what purposes? In the area of marriage, the question is, is denying two people of the same sex the right to enter the legal relationship, irrational because it discriminates on an irrelevant ground? What is marriage for? And the answer that communities have offered for millennia, is that “marriage” is an institution with certain core meanings. At its core, it is a social institution designed to facilitate the care of children who are born of a sexual relationship between a man and a woman, and to encourage both to be committed to the children and to each other.

Of course there are differing conceptions of marriage in modern Western societies. Marriage has always had the additional blessing of providing a place of care and support and fulfilment for the parties. In recent decades the role of marriage as providing mainly for the emotional and sexual needs of the parties to the marriage has come to the fore. But as many have pointed out, if marriage is centrally and primarily concerned with the preferences of two consenting adults, why does the legal system now need to be involved at all? The law has always regulated and recognised marriage primarily in the interests of children and families.

The UN & the ICCPR

This role of marriage can be seen in the provisions of the main UN document on the topic of “human rights”, the ICCPR, in article 23, which provides that:

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) The right of men and women of marriageable age to marry and to found a family shall be recognised. (emphases added)

Notice that art 23(2), which deals with the “right to marry”, does so in context of an article which is about the “family”, and the right to marry is inextricably linked with the right to “found a family”. And the fact that the bearers of that right are identified as “men and women” leads naturally to the assumption that this article concerns the usual form that marriage has taken throughout human history, the union of a man and a woman who will raise the children of their sexual union together.

It should not be surprising, then, that when the UN Human Rights Committee was asked to offer an opinion as to whether there was a “right to marry” which extended to same sex couples, in Joslin v New Zealand (Human Rights Committee, Views: Communication No 902/1999, 75th sess, UN Doc CCPR/C/75/D/902/1999; 17 July 2002) the Committee said there was not. After considering the arguments of the parties in detail, the Committee ruled that there was no issue of “discrimination” under art 26 of the Convention. They said:

8.2 The authors’ essential claim is that the Covenant obligates States parties to confer upon homosexual couples the capacity to marry and that by denying the authors this capacity the State party violates their rights under articles 16, 17, 23, paragraphs 1 and 2, and 26 of the Covenant. The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry.

Given the existence of a specific provision in the Covenant on the right to marriage,
any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. (emphasis added)

The UNHRC is by no means a “conservative” body. It has made a number of controversial decisions, extending discrimination rights on the basis of “sex” to the grounds of “sexual orientation”, for example. But on this issue it was quite clear- the ICCPR did not of itself make a failure to recognise same sex marriage a breach of human rights.

Of course the decision in Joslyn has its critics. In a detailed academic piece, “Marriage: A Human Right for All?” (2015) 36 Sydney Law Review 643 the authors Gerber, Tay & Sifris argue that the decision was wrong, and that in any event that the ICCPR is a “living instrument that should be interpreted and applied in light of present circumstances”, so that it would be decided differently today. Prof Triggs in her 2016 opinion piece, noted above, argues that “the law is evolving to accept marriage equality”. Different views can be offered on this point, of course. But one thing seems clear- it is not currently right to say that same sex marriage is a “human right” recognised by the international community.

The European Court of Human Rights

The situation is even clearer when decisions of the European Court of Human Rights are taken into account. The European Convention on Human Rights replicates many provisions of the ICCPR, one of which is art 12:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

In Schalk and Kopf v Austria (ECHR, App 30141/04; 24 June 2010) the Court ruled that the Convention did not require States party to introduce a system of same sex marriage. The Court also referred to the use of the phrase “men and women” as supporting the traditional view of marriage, and also said that (at the time of its decision) there was no “consensus” among European nations as to whether same sex marriage should be recognised. It concluded:

63. In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple such as the applicants access to marriage.

Since then three other decisions of the Court have reaffirmed its earlier decision that the European Convention does not contain a “right to same sex marriage”: Hämäläinen v. Finland (application no. 37359/09; 16 July 2014); Oliari and Others v. Italy (application no. 18766/11 and 36030/11); and Chapin and Charpentier v. France (application no. 40183/07; 9 June 2016).


The debate about whether or not Australia should extend the institution of marriage to include same sex couples will of course continue. But the point being made here is simple: it is misleading to speak as if this change were simply a matter of implementing an internationally recognised “human right”. There is no such human right. The matter must be resolved by a careful consideration of the nature of the institution of marriage and the implications of change. It cannot be resolved simply by an appeal to “equality” or “human rights”.